John Gordon Ross

A Man for All Reasons

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IIPA Special 301

May 20th, 2009 · No Comments

The IIPA Special 301 for 2009 is out and as unpleasant and boorish a document as you are likely to come across this year. The IIPA is a vast business coalition-cum-lobby masquerading as guardian of authors’ rights, which every year produces a list of countries which according to its lights “deny adequate and effective protection of intellectual property rights or deny fair and equitable market access to U.S. persons who rely on intellectual property protection pursuant to Section 182 of the Trade Act of 1974,”

(Note that “U.S.,” for the IIPA (iInternational Intellectual Property Alliance) is an entirely North American affair, which could not give two figs for the copyrights of Europeans or Asians. In other words, the first word in its very name is a lie. This is indicative)

The Special 301 groups “offending” countries in a “Watch List” of 25 and a “Priority Watch” list of 13 (Argentina, Brunei, Canada (yes, Canada!), Chile, Egypt, India, Indonesia, Mexico, Pakistan, the People’s Republic of China, the Philippines, the Russian Federation, and Thailand). The Watch List includes much of Western Europe, including Spain,

The Special 301 is breathtaking in its distorsion of language and truth. Its basic premise is that copyright breach is theft, which is nonsense, or piracy, which is at least more in line with popular language use. It uses words like “illegal,” with a totally cynical disregard for the law, and the phrase “unauthorized download” (unauthorized by whom?) as though it were on the same level as paedophilia. Indeed it actually says “criminal revenue in 2004 for IPR theft was $512 billion, while for drug trafficking it was $322 billion,” with the evident implication that copyright offences are more dastardly than drug smuggling.

The IIPA has this to say about Spain, specifically:

In 2009, IIPA recommends that Spain stay on the Watch List, and that USTR conduct an out-of-cycle review in summer 2009. See http://www.iipa.com/rbc/2009/2009SPEC301SPAIN.pdf. Spain first appeared on USTR’s Special 301 Watch List from 1989 through 1994. In IIPA’s 1994 Special 301 filing, the business software industry hoped that Spain’s implementation of the EU Software Directive would improve enforcement efforts. After some initial success in obtaining raids on end-users after that legislation was enacted, action by the courts had slowed to the point where it became clear that renewed attention to the problem was required. In 1998, IIPA recommended that Spain be placed on the Special 301 Watch List, primarily due to continuing high levels of piracy and losses experienced by the software industries. On May 1, 1998, Ambassador Barshefsky placed Spain on the Special 301 list of Other Observations. While noting the high levels of business software piracy in Spain, the Ambassador added, “The United States is concerned that judicial proceedings are frequently delayed and that penalties assessed against infringers are inadequate to serve as a deterrent against piracy.” However, in 1999 IIPA recommended that Spain be placed on the Special 301 Watch List due to one of the highest levels of piracy of business software in Europe. USTR agreed and elevated Spain to the Watch List for the first time since 1994. In 2000, IIPA again recommended that Spain remain on the Watch List for one of the highest levels of piracy for business software in the
European Union. USTR agreed, and kept Spain on the Watch List in 2000. Though IIPA did not make any formal recommendation for Spain in 2002, it did note certain copyright issues in its Special 301 cover letter to USTR that year. In 2004, IIPA recommended that Spain be returned to the Watch List, citing the country’s high piracy rates and the dominance of pirated material in street markets. In both 2005 and 2006, IIPA highlighted copyright concerns in Spain in the Special Mention section of its Special 301 Report. In 2007, IIPA recommended that Spain be added to the Special 301 Watch List but USTR chose not to do so. In 2008, IIPA recommended that Spain be added to the Special 301 Watch List; USTR placed Spain on the Watch List in April 2008.

If that you think that sounds like the IIPA has it in for Spain, you’re probably right. The “action by the courts” which slowed did so precisely because no Spanish legislation prohibits copyright infringement – p2p, for example, is entirely legal in Spain. This may change, and profiting from someone else’s copyright is quite a different kettle of fish (but even that is not a “crime” just because a US pressure group says it is). But in Spain, many police forces have given up on chasing street sellers with “pirate” CDs, because they are unable to prosecute successfully. This is simply the state of the law.

It is to be hoped that Spain will not allow itself to be buillied by this kind of thuggishness, but I am afraid the IIPA will get its way in time. But from me – bog off, IIPA.

Tags: Geekish

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